Federal lawsuit filed against Almer Township over wind project

Dan Ettinger, attorney for NextEra addresses Ellington Township Board of Trustees in January. He is one of the attorneys who filed a lawsuit against Almer Township Wednesday on behalf of a subsidiary of NextEra Energy Resources L.L.C. (File photo)

A subsidiary of NextEra Energy Resources L.L.C. filed suit Wednesday in federal court against Almer Township, seeking a court order that would force local officials to allow a $200 million project to move forward.
Tuscola Wind III L.L.C. filed the lawsuit in U.S. District Court for the Eastern District of Michigan in Bay City against Almer Township and the Almer Township Board of Trustees.
The 49-page complaint identifies five counts – claim of appeal, violation of procedural due process, equal protection, the Zoning Enabling Act, and Open Meetings Act.
The suit essentially claims a systematic effort has been underway to “kill” the planned Tuscola III project, starting with the formation of the Ellington-Almer Township Concerned Citizens (EATCC) group, continuing with the election of several group members last November, and culminating with a one-year moratorium on wind projects and denial of special-land use permit (SLUP) by the board in January.
“This (denial) decision, in addition to the Board’s Nov. 22, 2016 decision to enact by resolution pursuant to its ‘police power’ a moratorium that effectively suspends or amends the Township’s existing zoning ordinance …demonstrates the board’s animus toward and intent to ‘kill’ Tuscola Wind III’s proposed wind energy project in spite of its compliance with all applicable legal requirements,” the suit reads.
The company wants a court order to reverse denial of Tuscola III’s SLUP, void a one-year moratorium currently in place, and award costs.
The suit claims actions taken by the board “violated Tuscola III’s legal rights, requiring relief, including but not limited to, the reversal of the Township’s denial of Tuscola Wind III’s (SLUP) application and invalidation of the Township’s illegal police power moratorium.”
Bryan Garner, manager of communications at NextEra Energy Resources, told The Advertiser that the project should go forward because it complies with Almer Township rules.
“We therefore have a right, just like any property owner, to have the project considered and approved,” Garner said. “But after we submitted our application, the new Almer Township Board ignored the law and changed the rules to fit their personal agenda.
“It’s like changing the rules of a football game in the fourth quarter because the ref doesn’t like who’s winning,” Garner said. “That’s not right, and we filed a law suit against the Board, asking a judge to tell them it’s not right.”
Jim Tussey, trustee, Almer Township, said board members “patently disagree with the accusations NextEra Energy Resources L.L.C. has placed against the township board and planning commission.”
“The law has not been ignored as accused, but followed,” Tussey said. “No rules have been changed. The current board and planning commission inherited the ordinance from the 2012 board. Accusations against the board no matter how many times said don’t make them more true.
“The courts will sift out the wheat from the chaff,” Tussey said. “We are confident the courts will find that the township board and planning commission have effectively discharged their duties.”

Leading up to the lawsuit

The first of two public hearings hosted by the Almer Township planning commission. This meeting, held at Caro High School, was held two days after voters elected four new members to the township board of trustees. It was 10 days before they were sworn in. (File photo)

Tuscola County Register of Deeds records show Tuscola III has been in the works since at least 2014, when the company began securing leases with landowners.
In December 2012, NextEra launched operations of its first Tuscola County wind project that consists of 75 wind turbines. In November 2013, the company’s second Tuscola County project – Tuscola Wind II Energy Center – began operating. The wind turbines are primarily in Gilford and Fairgrove townships.
Tuscola III’s expansion east into Almer and Ellington townships would be the first wind turbines in each community respectively. The project calls for 55 wind turbines.
“Nineteen of these wind turbines are to be constructed in (Almer) Township,” the lawsuit filed Wednesday reads. “The Project plan in the Township includes 87 participating landowners representing 192 parcels. The Project facilities are to occupy 15.2 acres of land, and will be serviced by 6.6 miles of access roads, occupying 12.9 acres of land.”
With such a project in the works, officials in both communities began reviewing their wind ordinances in early 2015 to be sure they were ready for the machines.
It wasn’t until late 2015, however, that residents – many who would go on to be part of the EATCC – became more aware of the project as the wind ordinance reviews were nearing completion.
They consistently argued wind ordinances needed to go further to protect the health, safety, and welfare of all citizens. Former township officials and representatives of NextEra countered by saying the wind ordinance was fair, allowed for the project to safely move forward, and labeling people within the EATCC as “anti-wind.”
The lawsuit filed Wednesday goes further, alleging that EATCC employed an attorney — who is “the co-founder and member of anti-wind organization…called the Interstate Informed citizens coalition. The organization opposes wind as a matter of policy and lobbies against wind energy in Ohio and Michigan.”
“Part of IICC’s playbook is to coach the local groups they organize to assert that they are not anti-wind, but just pro-reasonable regulation,” the suit states. “But the words of IICC and the groups they organize reveal a true anti-wind agenda.”
Still, after many oftentimes contentious meetings (board of trustees and planning commission), the Almer Township board of trustees approved an updated wind ordinance last September.
But approval of the wind ordinance came after several members of the EATCC ran for the board of trustees in Almer Township in the August primary – successfully garnering enough votes to get on the November ballot. Their platforms included putting citizens’ safety first, and being more transparent.
In late September, after the primary and approval of the new wind ordinance, Tuscola III L.L.C. filed its SLUP application.
The most township officials could do in October was schedule public hearings on the applications, which would essentially be the last action taken by the boards before the Nov. 8 election.
In the November election, newcomers Jim Mantey, supervisor, and trustees Jim Tussey, Jim Rosenstangel, and Art Graff were all elected to the board, replacing former supervisor Jim Miklovic, and trustees Mike Putnam, Charles Dennis, and Bill Reavey. Treasurer Patricia Witkovsky, Clerk Peggy Reavey, and Trustee Brian Schriber were reelected.
Per Almer Township ordinance, Tuscola III L.L.C. was due a decision on its SLUP application within 100 days. The review process stayed on track with the Almer planning commission holding a public hearing Nov. 10 – exactly 10 days before the new board officially took office.
That Nov. 10 meeting was held, but ran more than three hours, and the conclusion was postponed until December.
At the board of trustees’ Dec. 13 meeting – with the new board in place – a one-year moratorium was approved by the board 5-2 (Schriber and Reavey voted against). The primary reason was to allow for the township’s wind ordinance to be reviewed once more.
Despite the moratorium, the township still was required to respond within the 100-day timeframe.
On the 100th day after filing its application – Jan. 17 – the township board voted to deny the SLUP application per recommendation by the township planning commission, which outlined several deficiencies in the SLUP application. One of the most-talked about was how sound would be measured.
Tuscola III L.L.C. has filed an appeal with the township that will be heard in front of the zoning board of appeals. The hearing is set for March 16, 7 p.m.

Going forward

Residents and officials packed into the first meeting held by the new Almer Township board of trustees on Nov. 22, 2016. The board voted to discuss and possibly vote on a moratorium in December. (File photo)

The lawsuit filed Wednesday takes particular issue with several actions taken by current township officials leading up to and after the election. Specifically, the lawsuit alleges:
• Tussey tried to get the Nov. 10 public hearing rescheduled “presumably until after the newly elected anti-wind members had taken office.”
• Tuscola III L.L.C. addressed all of the concerns identified during the review process.
• That when clarification was sought for items outlined as deficiencies, Tuscola III L.L.C. was portrayed to be in non-compliance.
• That several acceptable studies regarding economic and environmental impact were submitted, despite claims that they weren’t specific enough to Tuscola III.
The complaint also says that the project developer went above and beyond “in an effort to find common ground in the community.
“Tuscola Wind III agreed in its SLUP application to comply not just with the existing Ordinance, but with any provisions in the proposed ordinance amendments that were more restrictive than those in the existing Ordinance,” the lawsuit claims.
Tussey told The Advertiser that the lawsuit is just the latest in a long line of attempts by NextEra representatives to paint board members as anti-wind and skirt Almer’s ordinance.
“Planning commission and board (of trustees) members are to follow the rules, follow the ordinance,” Tussey said. “(NextEra) doesn’t want the board and (planning commission) to follow the rules. They want the rules to be ignored.”
The lawsuit also takes particular issue with the events that led up to the moratorium in Almer.
It calls out the fact that the boards in Almer and Ellington reserved space for special meetings held Nov. 22 at the Tuscola Technology Center in Caro – before they took office.
Attorneys for Tuscola III also take issue with the board deciding to switch legal counsel to Foster, Swift, Collins & Smith P.C. at that Nov. 22 meeting. They say that Foster, Swift, Collins & Smith billed the township as far back as Nov. 3 – before the election had even taken place – and began drafting notice of the special meeting and moratorium on Nov. 17-18, before the officials were sworn in.
“The resolution and ordinance were passed by the Board without Planning Commission review or a public hearing, ostensibly pursuant to the Board’s ‘police power,’” the suit claims.
The subject of Foster, Swift, Collins and Smith’s work for Almer Township came up Tuesday, one day before the suit was filed against the township.
Tussey said he had sought counsel from two legal sources about consultation with a law firm prior to taking office.
“They said it is very normal and customary for people that are taking office to engage in legal advice prior,” Tussey said during the meeting. “It is fully within the law for the township board to vote to approve those costs or not. In our case, the township board did approve those fees. They are legal.”
Tussey added that representatives of Foster, Swift has offered to remove fees that pre-date Nov. 22.
“If the board wishes to pursue that, they will provide a credit for all fees that are prior to Nov. 22,” he said.
Board and audience members questioned the move, despite Tussey’s explanation.
“You have people that were not even elected to office yet, talking to a new attorney, about township business that they may not even be a part of yet,” said Schriber, trustee, Almer Township. “And then you go ahead and put that on the taxpayers of the township.
“It seems very unethical to me,” he said.
Dave Vollmar, of Almer Township, accused the board of acting contrary to law.
“The only reason this lawyer company would kick it back and kick it out of there is that they know damn well it was illegal what you done,” Vollmar said. “And why don’t you admit it? It was illegal what you done.”
Wayne Koper, of Almer Township, said he didn’t have issue with the move.
“What we’re talking about are things that are going to be paid post-election, based on the fact that I have to have a board that has legal representation and some ability to start up with some knowledge, that doesn’t seem unreasonable to me.”
Tussey said the township plans to answer the lawsuit filed Wednesday within two weeks.

Andrew Dietderich is editor of The Advertiser and can be reached at andrew@tcadvertiser.com